LOS ANGELES (CN) — A California appeals court heard oral arguments Thursday in a dispute between The Los Angeles Times and the families of those killed in the 2018 mass shooting at the Borderline Bar and Grill in Thousand Oaks, California.
As part of their reporting on the mass shooting which left 12 people and the shooter dead, reporters for the Times asked Ventura County for the autopsy records for all of those killed. The county released records for the shooter eventually for a sheriff's deputy, Sgt. Ron Helus, who was killed in the incident, but refused to release reports for the other victims after their family members strenuously objected.
Autopsy reports are public records in California in most states — New York being an exception. After the Times filed a public records act request, the families of the victims sued and asked a trial court judge to keep the records sealed. They argued, among other things, that the Legislature was considering a bill — which the families were lobbying heavily for — that would keep certain autopsy records private. The judge agreed and issued an injunction, based largely on anticipation of the law passing. But the law didn't pass, despite being approved by the Assembly Committee on Public Safety.
Hearing the appeal, the three-judge panel of California's Second Appellate District focused largely on the lower court's reasoning.
"The judge was anticipating a bill that was going to be signed," said Presiding Justice Arthur Gilbert. "And the judge was quite open about why he was doing this." Noting the bill did not pass, he added, "Shouldn’t we just send the case back and tell the trial court to decide it in conformity with the law?"
That idea sounded fine to Alice Loughran, the attorney for the victims' families, as long as the injunction was kept in place. LA Times attorney Kelly Aviles argued the court should go further and lift the preliminary injunction, forcing Ventura County to release the records.
"The Borderline shooting happened years ago," said Aviles. "We still don’t have disclosure of the records. That’s the harm. The Public Records Act was intended to give records to the public when they’re newsworthy."
Justice Gilbert, who was quick to interrupt both attorneys throughout the hearing, sounded disinclined to take such a step.
"The arguments you want to make, you’ll get to make," Gilbert said. "You’ll have a full hearing without this statute hanging over your head contaminating your arguments about what the law is."
The Borderline victims' families have said, in public statements and in court filings, that following the shootings they were harassed online by those claiming the shooting was a hoax to further some sort of political agenda. A mother of one of the Borderline victims — U.S. Navy veteran Telemachus Orfanos, a survivor of the 2017 Mandalay Bay shooting in Las Vegas — has publicly spoken out in favor of gun control.
"Conspiracy theorists posted on the internet videos and blogs devoted to theories that the Borderline shooting was a hoax," the families wrote in their appellate brief. "About the same time, the county medical examiner was flooded with requests to access the autopsy reports of the victims."
"Autopsy reports contain profoundly intimate and personal information," the families said in the brief. "The reports analyze the victim’s medical history including prior surgeries, preexisting medical conditions, and drug or alcohol abuse. And autopsy reports provide gruesome facts about the victim’s manner of death.
"Already faced with the unimaginable pain of losing their loved ones in a mass shooting, they do not want to have the private and gruesome details in the autopsy reports to be in the media or on the internet in virtual perpetuity."
In its brief, the Times argued it is established law that autopsy reports are public records, and have been released for many other newsworthy murders. Photographs of the deceased are kept private, but the written records have long been public and it's in the public's interest for them to remain so, the paper said.
"Autopsy reports provide the press and the public with the ability to inspect how a medical examiner is performing the examiner’s duties," the Times said in its brief. "They also often lead to extremely newsworthy disclosures and are used often by the press to report activities of significant public concern."
As for the Borderline shooting, the paper argued: "It was not until almost a month after the shooting that authorities announced that Sgt. Helus was not killed by the shooter, but by a bullet from another responding officer. While the district attorney’s report, released more than two years later, claims that none of the other victims were shot by law enforcement, the public is entitled to disclosable records, such as autopsy reports, which would confirm or refute this claim."
But the actual argument over whether the records should be made public was largely ignored by the three-judge panel, which was rounded out by Justice Kenneth Yegan and Justice Steven Perren. They would be considered if the case is remanded to the lower court, which the judges appeared inclined to do.
A new version of the bill to make keep certain autopsy records sealed is currently pending. Written by Assembly member Jacqui Irwin, D-Thousand Oaks, the law would give a judge the power to seal certain records after reviewing them. Autopsy records from police shootings would not be eligible for such protection.
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